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relying on article 44.46 to hold that when a trial court misstated that veniremembers could serve as jurors if they had been convicted of misdemeanor theft and when it was unknown if a disqualified juror actually served because of the misstatement, there was no reversible error because there was no showing of harm
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No. 06-05-00280-CR.
February 28, 2007
March 1, 2007. DO NOT PUBLISH.
On Appeal from the County Court at Law Hunt County, Texas Trial Court No. CR-0501341.
Before MORRISS, C.J., CARTER and MOSELEY, JJ. Memorandum Opinion by Justice MOSELE Y.
MEMORANDUM OPINION
Michael Glenn Melton appeals from his conviction by a jury for assault causing bodily injury — family violence. He was sentenced to 180 days' confinement and a $ 750.00 fine. Melton contends on appeal that the trial court erred by conducting part of the voir dire of the jury panel in the absence of counsel and by incorrectly instructing the members of the panel that they might not be disqualified if they had a previous misdemeanor theft conviction. Melton argues that his right to an impartial jury was thus not protected and that he should be granted a new trial. Melton further contends that the family violence portion of the judgment and sentence is void because it does not conform to the jury's verdict or the trial court's pronouncement of sentence. The first portion of voir dire, in which the trial court attempted to eliminate jurors who were patently disqualified, was conducted by the court without counsel being present. The initial question is whether the court made an incorrect statement of the law to the venire. After introducing the proceeding, the court stated that there are certain qualifications that you have to have in order to be a juror in this county and in this state. So let me read all of those out at a time. If there's anybody that has any — if they know they are not qualified or they have a question on something, we'll get to that in just a minute. But let me go ahead and read them all. . . . . You can't have been convicted of theft or any felony. However, conviction of a misdemeanor theft still might allow you to be a juror; but no felony convictions. If you are under indictment or legal accusation or deferred adjudication for any theft or felony, then you would not be qualified to be a juror. Melton correctly points out that the trial court's initial explanation to the panel is a misstatement of statutory law. See Tex. Code Crim. Proc. Ann. art. 35.16(a)(2) (Vernon 2006) (as applied through Article 35.19 — that a juror who has been convicted of misdemeanor theft or a felony is disqualified). Since counsel was not present at this stage of the voir dire examination, no opportunity was provided to lodge objections or preserve error. There was no showing made that any members of the jury panel had ever been convicted of misdemeanor theft. However, even if it were shown that one or more of the jurors had been disqualified by reason of a prior misdemeanor theft conviction, that (standing by itself) does not provide a reason for reversal of the eventual conviction. In order to reach that threshold, Melton must raise the issue of the disqualification before the verdict was entered or, if the disqualification was discovered after the verdict, show a significant harm caused by the service of the disqualified juror. See Tex. Code Crim. Proc. Ann. art. 44.46 (Vernon 2006). The contention raised here is not that a disqualified juror served, but that the defendant has a right to a properly-conducted jury selection process. Although this is certainly true, the purpose of that procedure is to ensure that a jury is selected which does not contain individuals who are absolutely disqualified from serving. See Tex. Const. art. I, § 15; Tex. Gov't Code Ann. § 62.102(7) (Vernon Supp. 2006). Even if it had been shown that a disqualified juror had been empaneled and served on the jury, that, by itself, does not automatically warrant reversal; rather, "significant harm" must be shown. In other words, in the absence of both showing that a disqualified juror actually served on the jury, together with aggravating factors which result in significant harm to the defendant, an error by the court in explaining disqualifications does not constitute sufficient error to reverse a conviction. See generally Preiss v. Moritz, 60 S.W.3d 285, 288-90 (Tex.App. -Austin 2001), rev'd on other grounds, 121 S.W.3d 715 (Tex. 2003) . The contention of reversible error is overruled. Melton next contends that the family violence portion of the judgment and sentence is void because it does not conform to the jury's verdict or to the trial court's pronouncement of sentence. He, therefore, asks this Court to reform the judgment to delete the finding. The trial court received and announced the verdict of the jury, which found Melton guilty of assault as charged in the information. After the punishment phase of trial was complete, the jury assessed punishment, which was imposed by the trial court, of 180 days' confinement in county jail and a fine of $750.00 and costs of $ 251.00. The general rule is that, when the oral pronouncement of sentence in open court and the written judgment conflict, the oral pronouncement controls. Thompson, 108 S.W.3d at 290; Smith v. State, 176 S.W.3d 907, 920 (Tex.App. -Dallas 2005, pets. ref'd [3 pets.]). The solution is to modify the written judgment to conform to the sentence as it was orally pronounced. Thompson, 108 S.W.3d at 290. This is not that situation. The affirmative finding as designed and implemented by the Texas Family Code is not a part of the sentence. It does not enhance punishment or provide additional punishment — it is not truly a part of the punishment imposed in this case. See Henderson v. State, No. 03-04-00687-CR, 2006 WL 952374 (Tex.App. -Austin Apr. 14, 2006, pet. ref'd); Thomas v. State, 150 S.W.3d 887, 889 (Tex.App. -Dallas 2004, pet. ref'd), cert. denied, ___ U.S. ___, 126 S.Ct. 203 (2005). We recognize that a family violence finding may become relevant to the sentence if appellant is ever prosecuted for a second family violence assault pursuant to Section 22.01(b)(2). See Tex. Penal Code Ann. § 22.01(b)(2) (Vernon Supp. 2006). However, such a finding does not impact the punishment assessed in the present case. Thus, we cannot conclude that the sentence imposed by the trial court in open court differs from the sentence reflected by the judgment. Error has not been shown. We affirm the judgment.
The trial court is required by Tex. Code Crim. Proc. Ann. art. 42.013 (Vernon 2006), to make the family violence determination by making an affirmative finding based on the evidence of that fact and by entering that finding in the judgment of the case. Butler v. State, 189 S.W.3d 299, 302 (Tex.Crim.App. 2006). We do not, in this opinion, address the adequacy of the language used in the judgment to show that such a finding was made by the court.
The reviewing court has the power to modify judgments to make the record speak the truth when it has the necessary data and information to do so. Tex. R. App. P. 43.2(b); Thompson v. State, 108 S.W.3d 287, 290 (Tex.Crim.App. 2003); Asberry v. State, 813 S.W.2d 526, 529 (Tex.App. -Dallas 1991, pet. ref'd).